VISWANATHA IYER, J. - (1.) O .P. No. 7222 of 1992 is a petition arising out of the assessment made on the respondent assessee for the asst. year 1986 87. A return was filed on 31st Dec., 1986 which was signed by the Executive Director of the respondent company. Another return was filed on 11th March, 1987. The question as to whether the return filed on 31st Dec., 1986 was a valid return or whether it is a void one was raised for the first time in the appeal before the Tribunal and the Tribunal held that since all the materials to decide the issue were on record and since the question was purely a question of law, they were admitting this new ground in appeal. They then dealt with the matter and came to the conclusion that the return filed on 31st Dec., 1986 was not a valid return. They further held that s. 272B of the IT Act, 1961, was not attracted to the facts of this case and was not sufficient to validate the said return. Consequent on these findings, the Tribunal held that the return filed by the assessee on 11th March, 1987 was the only valid return filed by the assessee, that, therefore, the further proceedings for the completion of assessment required notices under Ss. 142 and 143 of the Act which had not been issued, that the non issue of notice under Ss. 142 and 143 was an irregularity which could be cured and that opportunity must be given to the Department to regularise the assessment. It, therefore, set aside the order of the Commissioner(A) and remitted the matter back to the assessing authority to complete the assessment in accordance with law.
(2.) OUT of this order of the Tribunal, the Revenue sought to have certain questions of law referred for determination of this Court. The petition OP No. 7222 of 1992 is filed to compel reference of those questions. Penalty had also been imposed on the assessee based on the assessment referred to earlier and that was taken up in appeal to the Tribunal. Since the quantum appeal was allowed and remitted back to the assessing authority, the Tribunal held that the penalty imposed on the basis of such assessment cannot stand. The penalty was, therefore, cancelled and liberty was given to the Department to initiate penalty proceedings if found necessary. Department sought reference of certain questions as arising out of this order and that application being dismissed, OP No. 5666 of 1992 is filed to direct reference of those questions.
(3.) WHILE counsel for the Department contended that questions of law arise out of the order of the Tribunal which forms the subject of OP No. 7222 of 1992, counsel for the assessee contended that no such questions arise for consideration and that in any case the petition has become infructuous and virtually an abuse of process for the reason that the order of the Tribunal had been implemented by the assessing authority by completing a fresh order of assessment on 22nd Jan., 1990. It was, therefore, submitted that no purpose will be served by directing reference of the questions sought by the Department. He also submitted that so far as the penalty matter is concerned, no question of law can be said to arise inasmuch as the Department has been given liberty to initiate fresh proceedings after the reassessment if so desired.;